Citation Nr: 9900764
Decision Date: 01/13/99 Archive Date: 01/22/99
DOCKET NO. 97-13 296 A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to an increased rating for bilateral plantar
calluses, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Daniel R. McGarry, Associate Counsel
INTRODUCTION
The veteran had active service from December 1972 to November
1975.
This matter came before the Board of Veterans’ Appeals
(Board) on appeal from a rating decision in which the
regional office (RO) reduced the disability evaluation of the
service-connected bilateral plantar calluses from 10 percent
to zero percent. During the appeal, a hearing officer
restored the 10 percent rating, effective from the date of
reduction in March 1995.
In a March 1995 statement, the veteran seemed to be
requesting a reopening of the claim of entitlement to service
connection for other foot disorders and to raise the issue of
entitlement to a total rating for compensation purposes due
to individual unemployability (TDIU). The RO treated this
statement as a claim for non-service-connected pension, which
it denied. However, it did not address the issues of
entitlement to TDIU and whether new and material evidence had
been submitted to reopen the claims of entitlement to service
connection for bilateral hallux valgus deformity, pes planus,
and hammer toe deformity of the second left toe. The Board
refers these matters to the RO for appropriate action.
In Floyd v. Brown, 9 Vet.App. 88 (1996), the Court of
Veterans Appeals (Court) held that the Board does not have
jurisdiction to assign an extraschedular rating under 38
C.F.R. § 3.321(b)(1) in the first instance. The Board is
still obligated to seek out all issues that are reasonably
raised from a liberal reading of documents or testimony of
record and to identify all potential theories of entitlement
to a benefit under the laws and regulations. In Bagwell v.
Brown, 9 Vet.App. 337 (1996), the Court clarified that it did
not read the regulation as precluding the Board from
affirming an RO conclusion that a claim does not meet the
criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1)
or from reaching such a conclusion on its own. Moreover, the
Court did not find the Board’s denial of an extraschedular
rating in the first instance prejudicial to the veteran, as
the question of an extraschedular rating is a component of
the appellant’s claim and the appellant had full opportunity
to present the increased-rating claim before the RO.
Consequently, the Board will consider whether this case
warrants the assignment of an extraschedular rating.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his disability from his bilateral
plantar calluses has worsened and warrants a higher rating
than the 10 percent evaluation currently in effect.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the grant of an increased rating for
bilateral plantar calluses.
FINDING OF FACT
The veteran’s disability from bilateral plantar calluses is
manifested by tender, painful calluses beneath the first and
fifth metatarsal heads on both feet.
CONCLUSION OF LAW
The criteria for a rating in excess of 10 percent for
bilateral plantar calluses have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321, 4.1, 4.2, 4.7,
4.10, 4.40, 4.41, 4.45, 4.71a, Diagnostic Code 5279 (1998).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran has presented a well-grounded claim for increased
disability evaluation for his service-connected disabilities
within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); cf.
Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992) (where
veteran asserted that his condition had worsened since the
last time his claim for an increased disability evaluation
for a service-connected disorder had been considered by VA,
he established a well-grounded claim for an increased
rating). The Board is satisfied that all appropriate
development has been accomplished and the Department of
Veterans Affairs (VA) has no further duty to assist the
veteran in developing facts pertinent to his claim. The
veteran has not advised VA of the existence of additional
evidence which may be obtained.
Disability evaluations are based upon the average impairment
of earning capacity as contemplated by a schedule for rating
disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part
4 (1998). Although VA must consider the entire record, the
most pertinent evidence, because of effective date law and
regulations, is created in proximity to the recent claim.
38 U.S.C.A. § 5110 (West 1991).
VA utilizes a rating schedule which is used primarily as a
guide in the evaluation of disabilities resulting from all
types of diseases and injuries encountered as a result of or
incident to military service. The percentage ratings
represent, as far as can practicably be determined, the
average impairment in earning capacity resulting from such
diseases and injuries and their residual conditions in civil
occupations. Generally, the degrees of disability specified
are considered adequate to compensate for considerable loss
of working time from exacerbations or illnesses proportionate
to the severity of the several grades of disability. 38
U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1998). It is
essential, both in the examination and in the evaluation of
disability, that each disability be viewed in relation to its
history. 38 C.F.R. § 4.1 (1998).
Service medical records show that the veteran sustained an
injury to his right foot while playing football in August
1973. When examined he had swelling on the dorsum of the
foot. An X-ray of the foot was within normal limits.
Treatment notes dated in December 1973 show that he
complained of bunions on his left foot. In January 1974, he
complained of painful calluses on both feet. X-rays of both
feet showed flexion deformities in several toes; the great
toes on both feet also appeared to be deviated from midline.
An examiner noted that the veteran had been trimming the
calluses on a regular basis. A podiatry consultation in
February 1974 contains diagnoses of callus and pes planus,
which were considered to have pre-existed the veteran’s entry
into service. In November 1974, an examiner noted an
abnormality of the veteran’s right little toe. He
recommended that the veteran change his boot size. In March
1975, an examiner noted that the veteran’s little toes on
both feet were pointed sideways, causing pain when wearing
shoes or boots. In the report of the veteran’s medical
examination for separation from service, the examiner noted
that the veteran had been treated for fungal hyperkeratosis
between his right fourth and fifth toes. The examiner
recommended follow-up for fungal foot infection. However,
the report indicates that the veteran’s feet were clinically
normal.
During a VA examination in June 1976, the veteran complained
that his feet hurt and he had corns on his toes. The
examiner reported that the veteran had congenital pes planus
and hallux valgus bilaterally. On examination, there was
very mild scaling on the plantar aspects of the feet which,
according to the examiner, was typical of mild tinea pedis.
There was a small callus on the ball of the right big toe and
another in the region of the fifth metatarsal head. The left
foot showed mild hammertoe deformity of the second toe with a
callosity on the dorsal aspect of the proximal
interphalangeal joint. There was a callus which measured
about one centimeter in diameter on the plantar aspect of the
left foot in the region of the fifth metatarsal head. There
were two small calluses in the region of the first metatarsal
head. The veteran had a flat-footed gait. X-rays of the
feet showed moderate hallux valgus deformity. The lateral
views showed no definite pes planus deformity. The pertinent
diagnoses were: 1) congenital pes planus, with hallux valgus,
bilateral; 2) hammertoe deformity, left second toe, with
callous on dorsal aspect of the proximal interphalangeal
joint; 3) small, bilateral plantar calluses; and 4) inactive
tinea pedis.
The RO’s June 1976 rating decision granted service connection
for small, bilateral plantar calluses and assigned a
noncompensable evaluation. Service connection was also
granted for inactive tinea pedis and was denied for bilateral
pes planus with hallux valgus deformity and hammertoe
deformity of the left second toe. A rating decision in July
1995 increased the disability evaluation for the service-
connected calluses to 10 percent, effective in March 1995, by
analogy to Diagnostic Code 5279. See 38 C.F.R. §§ 4.20, 4.27
(1998). Under that diagnostic code, unilateral or bilateral
metatarsalgia is rated 10 percent disabling. No higher
rating is assignable under Diagnostic Code 5279.
During VA examinations in July 1996 and January 1998, painful
calluses were noted on plantar surface of both feet. In July
1996, these were described as being beneath the right first
and fifth metatarsal head and beneath the left fifth
metatarsal head. In January 1998, the calluses were
described as located beneath the first and fifth metatarsal
heads of both feet. In addition, calluses were noted on the
tip of the right third toe and on the tips of the first and
fifth toes on the left. Other, non-service-connected foot
disabilities were also noted at each examination. As noted
above, no higher rating is available under Diagnostic Code
5279.
The Board notes that several other diagnostic codes pertinent
to rating disability from foot disorders provided for
schedular ratings higher than 10 percent. However, such
other codes are not for application in this case. The
veteran’s disability from pes planus is not service connected
(Diagnostic Code 5276). There is no indication from the
record that he has pes cavus (Diagnostic Code 5278). Nor is
there any indication that he has nonunion or malunion of the
tarsal or metatarsal bones (Diagnostic Code 5283) or moderate
or severe foot disability due to a foot injury (Diagnostic
Code 5284).
The Board finds that the veteran disability from bilateral
plantar calluses is manifested by painful, hard calluses
beneath the first and fifth metatarsal heads, bilaterally.
The Board concludes that the criteria for a higher schedular
rating are not met.
In reaching its decision, the Board has considered the
complete history of the disability in question as well as the
current clinical manifestation and the effect the disability
may have on the earning capacity of the veteran. 38 C. F. R.
§§ 4.1, 4.2, 4.41 (1998). The United States Court of
Veterans Appeals (Court) has held that the Board must
consider and discuss the impact of pain in making its rating
determination. See Spurgeon v. Brown, 10 Vet. App. 194, 196
(1997); DeLuca v. Brown, 8 Vet. App. 202, 205 (1995).
Section 4.40 provides in part that functional loss may be due
to pain, supported by adequate pathology, and evidenced by
the visible behavior of the claimant undertaking the motion.
The section also provides that weakness is as important as
limitation of motion, and a part which becomes painful on use
must be regarded as seriously disabled. A little used part
of the musculoskeletal system may be expected to show
evidence of disuse, either through atrophy, the condition of
the skin, absence of normal callosity or the like.
Factors listed for consideration in 38 C.F.R. § 4.45 include
less movement than normal (due to ankylosis, limitation or
blocking, adhesions, tendon-tie-up, contracted scars, etc.);
more movement than normal (from flail joint, resections,
nonunion of fracture, relaxation of ligaments, etc.);
weakened movement (due to muscle injury, disease or injury of
peripheral nerves, divided or lengthened tendons, etc.);
excess fatigability; incoordination, impaired ability to
execute skilled movements smoothly; and pain on movement,
swelling, deformity or atrophy of disuse. Instability of
station, disturbance of locomotion, interference with
sitting, standing and weight-bearing are related
considerations.
In this case, the veteran’s complaints are that his feet are
painful from prolonged standing or walking. In his
testimony, he reported foot pain on walking and swimming 100
feet. He also indicated, however, that he could walk “a
little bit . . . mostly thirty minutes . . .” However, the
Board finds that such symptoms are contemplated by the rating
provided under Diagnostic Code 5279. Metatarsalgia is
defined as “pain and tenderness in the metatarsal region.”
DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1023 (28th ed.
1994). The veteran has not asserted, nor does the evidence
in the record show, that he has the other factors to be
considered under 38 C.F.R. § 4.45.
In exceptional cases where schedular evaluations are found to
be inadequate, consideration of “an extra-schedular
evaluation commensurate with the average earning capacity
impairment due exclusively to the service-connected
disability or disabilities” is made. 38 C.F.R.
§ 3.321(b)(1) (1998). The governing norm in these
exceptional cases is a finding that the case presents such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization as to render impractical the
application of the regular schedular standards. Id.
The Board first notes that the schedular evaluations in this
case are not inadequate. Although no higher rating is
assignable under Diagnostic Code 5279, the 10 percent
evaluation for bilateral metatarsalgia contemplates pain and
tenderness in the metatarsal region. Second, the Board finds
no evidence of an exceptional disability picture in this
case. The veteran has not required hospitalization or
frequent treatment for his service-connected foot disorders,
nor is it shown that the disorders otherwise so markedly
interfere with employment as to render impractical the
application of regular schedular standards. Finally, there
is no evidence that the veteran’s disability from bilateral
plantar calluses is unusual or exceptional when compared to
other veterans with similar disabilities. Rather, for the
reasons noted above, the Board concludes that the impairment
resulting from bilateral plantar calluses, including the
effect of pain on function and movement, is adequately
compensated by the 10 percent schedular evaluation.
Therefore, extraschedular consideration under 38 C.F.R.
§ 3.321(b) is not warranted in this case.
ORDER
An increased rating for bilateral plantar calluses is denied.
MARY GALLAGHER
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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